1. Rule. Learned APP Mr.H.L. Jani appears and waives service of notice of rule on behalf of the respondentState.
2. The present petition has been filed by the petitionersoriginal accused under Articles 226 and 227 of the Constitution of India as well as under Section 482 of the Code of Criminal Procedure, 1973 for the following prayers :
A. Your Lordships may be pleased to issue an appropriate writ, order and/or direction to quash and set aside the Order dated 29.1.2011 passed on Application for Discharge in Criminal Case No.1039/2007 pending before the Learned Judicial Magistrate First Class, Khambhalia.
B. Pending hearing and final disposal of the present Petition this Hon'ble Court may be pleased stay the proceedings Criminal Case No.1039/2007 pending before the Learned Judicial Magistrate First Class, Khambhalia.
C. An exparte ad interim relief in terms of prayer (B) above may kindly be granted;
D. Such other and further relief/s as may be deemed just and necessary may kindly be granted.
3. The facts of the case briefly summarized are that FIR came to be registered relating to an accident which took place on 01.02.2007 in the premises, where the petroleum product were lying in the area due to cold work before the process of the hot work is conducted, which resulted into an accident and issue, which has been raised was whether necessary precautions were taken and whether the distance was more than 25 metre or not. The moot question therefore was whether it would attract the alleged offences under Section 304 or not with a specific contention that learned Magistrate has misdirected in holding that FSL Report and the expert evidence is not important and, therefore, cannot be a basis of discharge while deciding application under Section 245 of the Code of Criminal Procedure, 1973 (Exh.6). On one hand, it is specifically contended that the distance was 25 metre as prescribed for hot work and cold work and, therefore, no negligence could be attributed as it was purely an accident. FSL report with the opinion of the Expert has also been produced to emphasis that proper care as expected of a reasonable man has been taken and, therefore, the application, Exh.6 under Section 245 of the Code of Criminal Procedure, 1973 for discharge of the accused nos.1 to 4 has been given in Criminal Case No.1039/2007, which came to be rejected vide order dated 29.01.2011, which has been assailed in the present petition.
4. Heard learned Sr. Counsel, Mr.K.S. Nanavati for the petitioners and learned APP Mr.H.L. Jani for the respondentState of Gujarat.
5. Learned Sr. Counsel, Mr.K.S. Nanavati has referred to the papers and emphasized about the process to show that the distance of 25 metre as required under the norms has been left. He, therefore, submitted that if the norms as required or rather as per the international standard, have been fulfilled and still the accident occurs, it would not attract the alleged offence under Section 304 A of the Indian Penal Code. He has pointedly emphasized that it is not merely an assertion but FSL Report along with the Expert opinion has been brushed aside while deciding such an application for discharge on the ground that it is not important itself thoroughly misconceived. He, therefore, submitted that at the stage of framing of the charge while deciding the application for discharge, though detailed appreciation of evidence is not made but primafacie evidence has to be considered, which goes to the root of the matter. He emphasized that if this opinion of the Expert with FSL Report is taken into consideration, the offence would not be attracted at all. It is in these circumstances, he submitted that the Court below had misdirected and the impugned order may be quashed and set aside.
6. Learned APP Mr.H.L. Jani for the respondentState, however, resisted the application and submitted that whether it is an accident or it is a consequence of a negligence could be considered on the basis of the evidence and, therefore, the Court below was justified in passing the impugned order as it cannot be decided at that stage. He submitted that only primafacie has to be considered and the accident has occurred whether the injury has been caused and, therefore, the present petition may not be entertained. Alternatively, it was submitted that it may be remanded that it may be reconsidered on the basis of the FSL Report and the opinion of the expert.
7. In rejoinder, learned Sr. Counsel, Mr.Nanavati submitted that if primafacie also, offence is not made out, the petitionersaccused cannot be compelled to face the trial or the charges. He submitted that the Court below ought to have
that all necessary parameters or the standard have been fulfilled and the reasonable care as expected was also taken. Therefore inspite of such having taken care, the accident may occur, which may be unfortunate but no criminal liability would be attracted and the petitioners have been falsely roped in. He, therefore, submitted that the order may be quashed and set aside and either it may be remanded or this Court may grant stay of further proceeding.
8. In view of the rival submissions and considering the impugned order passed by the Additional Chief Judicial Magistrate, Khambhaliya in Criminal Case No.1039/2007 below Exh.6, it would be evident that the distance of 25 metre according to the international norms have been maintained. The witnesses in the maintenance department have stated that it had cleared the petroleum product before hot word started and the distance of 25 metre has been maintained. Further, the learned Judge has specifically observed that the opinion of the Expert or the FSL Report is secondary or supporting evidence, which cannot be considered. Therefore, FSL Report and the opinion of the Expert, which has not been considered and brushed aside, would not be justified. It would go to the root of the matter that even after considering said evidence, whether the ingredients for the alleged offences can be said to have been fulfilled even primafacie or not is required to be considered. Provisions of Section 245 of the Code of Criminal Procedure, 1973 provides as under: 245. When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
9. Thus, the Magistrate is required to take into consideration all the evidence and it would include FSL Report and on that basis, once is required to be considered that after considering said evidence, whether it could be a case attracting Section 304A of the Indian Penal Code or it can be an accident.
10. Moreover, though the Hon'ble Apex Court in a judgment in case of Smt. Om Wati & Anr. Vs. State, through Delhi Admn. & Ors., reported in AIR 2001 SC 1507 has made observation that at the stage of deciding discharge application, the Court is only required to consider primafacie case and detailed scrutiny of evidence is not required. However, though it may not be necessary to weigh or appreciate the evidence, substantial evidence, which goes to the root of the matter like FSL Report, cannot be overlooked and, therefore, relevant consideration for the purpose of deciding such application for discharge has to be considered.
11. Therefore, without any further elaboration, the interest of justice would be served in the impugned order deserves to be quashed and set aside and the matter is remanded back for deciding afresh after considering all evidence and material including FSL Report and opinion of the Expert instead of granting stay of further proceeding.
12. In the circumstances, the present petition stands allowed. The impugned order passed below application for discharge, Exh.6 in Criminal Case No.1039 of 2007 by the Additional Chief Judicial Magistrate, Khambhaliya dated 29.01.2011 is hereby quashed and set aside and the matter is remanded back to the Additional Chief Judicial Magistrate, Khambhaliya for deciding the discharge application afresh under Section 245 of the Code of Criminal Procedure, 1973. While deciding the application for discharge, the learned Judge shall consider all material and evidence including FSL Report and opinion of the Expert.
13. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
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(RAJESH H.SHUKLA, J.)